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TMI Blog2025 (1) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant from its customer for delivery of the goods upto the customer's place. Purchase orders contained terms like 'Freight: paid by the supplier', 'Freight: inclusive' or 'Freight:N.A;. In the tax invoices and the challans, the mode of despatch has been mentioned as 'by road' without reference to any separate amount of freight or transportation.
Conclusion - In the facts of the case herein, 'place of removal' is the premises of buyer and not the factory gate of the appellant. Therefore, the appellant is entitled to take credit of Service Tax paid on GTA service for outward transportation of the goods.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... inal products, which are provided upto the place of removal of final products as the word 'from' was replaced by the word 'upto' by the amended provision. As per section 4(3) (c) of Central Excise Act, 1944, the 'place of removal' is either factory gate, warehouse or depot/premises of consignment agent and does not include purchaser's premises. Since the credit paid on such services is not admissible, a show cause notice dated 15.5.2019 proposing disallowance of credit and recovery of inadmissible Cenvat credit of Rs.6,02,379/- was issued to the appellant which culminated in the Order-in-Original dated 15.03.2021 confirming disallowance of credit and upholding recovery of inadmissible credit alongwith interest and penalty. Aggrieved, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts transferred only at the customer's premises and the risk during the transit from the factory upto to the customer's premises i.e. the destination point, was borne by the appellant. He further submits that the freight charges also form part of the price of finished products and no separate freight was charged by the appellant. According to learned Counsel, as per CBEC circulars dated 23.8.2007 and 20.10.2014 respectively in the instant matter the customer's premises is to be treated as 'place of removal' and therefore the lower authorities erred in denying the credit in issue to the appellant. Learned Counsel also submits that in normal course of business when the goods are sold at factory gate or from the depot, ownership of goods transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the judgement of the Hon'ble Supreme Court are as under:- 11………. However, the important aspect of the matter is that cenvat credit is permissible in respect of 'input service' and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of 'input service' which brought about a total change. Now, the definition of 'place of removal' and the conditions which are to be satisfied have to be in the context of 'upto' the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board's circular, nor it could be. 12. Secondly, if such a circular is made applicable even in respect of post amendment cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority needs to ascertain the 'place of removal' by applying the judgements of the Supreme Court in Emco and Roofit Industries, the decision of the Karnataka High Court in Bharat Fritz Werner, and the Circular dated 08.06.2018 of the Board to determine the admissibility of CENVAT credit on the GTA service upto the place of removal. " In the case of FOR destination sale such as in the matters of CCE, Mumbai vs.Emco Ltd.;2015 (322) ELT 394 (SC) and CCE vs.M/s.Roofit Industries Ltd.,2015 (319) ELT 221 (SC) where the ownership, risk in transit remained with the seller till the goods are accepted by buyer on delivery and till such time seller alone remained the owner of the goods, benefit to avail Cenvat credit has been extended by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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